On Originalism, Strict Constructionism And Intellectual Honesty
By Pejman Yousefzadeh Posted in The Courts — Comments (12) / Email this page » / Leave a comment »
In seeking to understand Judge Alito's jurisprudential philosophy as applied to specific cases, commentators will likely discuss one of the few international law cases in which the judge has had a hand; Chen v. Ashcroft, which is discussed at length here. As discussed in the post, the case involved a Chinese couple that wanted to marry but were denied a marriage license by Chinese authorities since they were not of marriageable age. When Chinese authorities discovered that the fiancée was pregnant, they forced her to have an abortion in the eighth month of pregnancy.
Chen was an asylum case that came before the Board of Immigration Appeals. As discussed in the post, American asylum law affords protection in cases where there is "a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion." While past decisions have found that compulsory abortion constitutes political persecution, the BIA found that "marital status was the defining distinction that precluded Chen from securing asylum because his fiancee was forced to abort." As such, asylum was rejected.
Judge Alito wrote an opinion affirming the BIA's rejection of asylum, contending that the marital status distinction was a "bright line rule" that afforded no protection to unmarried couples when it came to the issue of compulsory abortions affecting those unmarried couples. Additionally, China's refusal to allow the couple to marry was not found to be persecution by Judge Alito because:
. . . A law or practice, however, does not necessarily rise to the level of “persecution” simply because it does not satisfy American constitutional standards or diverges from the pattern followed by other countries. As we have noted, persecution is an “extreme” concept that “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”
Quite clearly, this is a painful case and it goes against many of our specific policy principles. But if we are going to insist on originalism/strict constructionism, then that means that we are going to have to be prepared for decisions that will violate policy principles we would enact if we were legislators. It may very well be that a change in the BIA's policies and rules would be advisable. But the best way to effect those changes are through the proper administrative and legislative avenues. Not through a judge legislating from the bench. At times, being an originalist/strict constructionist is quite painful--as Justice Scalia can certainly attest to given his decision to join the majority opinion in Texas v. Johnson. It certainly means that originalists/strict constructionists do not have the visceral pleasure of enacting their policy preferences from the benches and using their power to make their fondest policy dreams come true. But in a democratic republic such as ours, there is no way we can countenance legislating from the bench and at the same time preserving the very foundations of the democratic republic we hold so dear.
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On Originalism, Strict Constructionism And Intellectual Honesty 12 Comments (0 topical, 12 editorial, 0 hidden) Post a comment »
I think the understanding one can gain from looking at these kind of decisions from Alito is that he is closer to Scalia than Thomas.
This is not a bad thing, of course - it just means that Thomas will continue to provide the moral weight on the court after Scalia is gone. I'm glad that Thomas, Roberts, and Alito are all at least a decade younger.
This is why I think Alito will be a major improvement from Rehnquist. I always felt that Rehnquist ruled from his gut, and then rationalized an argument to support his ruling. In contrast, Scalia, and it seems Alito, value the process above the result. Assuming Alito is confirmed, there will be three (Scalia, Alito, Thomas - I'm still not convinced on Roberts) who will have a demonstrated history of acting as interpreters of the Constitution rather than authors of it.
You know, seeing what I have of Alito, he most reminds me of... Robert Bork. In terms of his legal philosophy, that is. Bork's doctrine of "Original Understanding" seems very much to describe Alito's jurisprudence... the "strip search" case being one example.
I'm not a lawyer and have not read many of Alito's decisions, so I would be curious to hear what more qualified commenters think.
Not that Alito should be judged in comparison to Scalia or Bork or anyone in particular, I just think it is interesting when you try to divine Alito's judicial philosophy.
This opinion sounds rather harsh and crude, I am glad that judge Alito refused to legislate from the bench. Let it be clear, I dont agree with the outcome, but it is up to me to force those bums in the legislature to enact laws that will protect women from the oppressive and inhumane chinese goverment.
So...enter devil's advocate. Say a judge in Oregon, or California, or wherever rules that nowhere in the state constitution does it say that marriage is between a man and woman, and that it is illegal for the state to deny homosexuals marriage licenses. That judge will be called out by the right as a "judicial activist", even though they read the constitution as it was written and made a ruling based upon it.
Maybe the judge didn't think the people were ready to have homosexual marriages, but sometimes taking the constitution as it is written is painful. Why does this judge get despised by the very people calling for an end to judicial activism?
I'm just curious, because I think there is a tendency on both sides to call any ruling that they do not approve of "judicial activism" and I think one would find that, in general, judges are not activists at all, for the left or the right.
interpretation that doesn't swing my way, and have somebody whose philosophy is anchored to the constitution, than a conservative judicial activist.
A conservative judicial activist is just as bad for the courts as a liberal one-the only difference is I might like some of the decisions personally from a conservative activist.
I also agree that policy-even that we find appalling should be changed through the legislative or executive branch, not through the courts.
The word "marriage" has a meaning outside of the constitution. It is not for a state constitution to define the word. If it is used (and I would be surprised if marriage was mentioned in any state constitution specifically, other than recent amendments, but I could be, and probably am, wrong) in the constitution, it means what it means (at the time of the writing).
If you were to ask me what a marriage is, I would say it is a contract between 1 man, 1 woman, and 1 God. And its none of the state's business.
But, the more traditional definition is 1 man and 1 woman (with a state license).
Constitutional language concerning polygamy is in some western state constitutions--I believe Congress required it for territories with significant Mormon populations before they would be made states.
thrown around too much. There is a line between judicial activism and judicial interpretation. The amendment procedure as a tool for change does not replace the interprative responsibility of the judicial branch. Congress cannot anticipate every application of a law that it has passed, therefore a judge must interpret that application based on facts that the policy makers are not privy too.